USA V. GONZALEZ-REYES
Split Score
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Case Summary
Disposition
Affirmed
The Ninth Circuit upheld the district court’s refusal to dismiss an illegal-reentry indictment against Higinio Gonzalez-Reyes. Assuming he had exhausted remedies and been denied judicial review, the panel held that his prior California rape conviction categorically matches the federal generic definition of rape, making him an aggravated felon and defeating his § 1326(d) collateral attack.
Circuit Split Identified
Legal Issue
Whether expedited-removal proceedings under 8 U.S.C. § 1228(b) provide a meaningful administrative vehicle for a non-citizen to challenge the legal basis of removability, such that the exhaustion requirement in § 1326(d)(1) can or cannot be satisfied.
Circuit Positions
Expedited-removal proceedings do NOT give aliens a forum to contest the aggravated-felony determination; exhaustion under § 1326(d)(1) is therefore unavailable/satisfied.
Expedited-removal proceedings DO allow legal challenges to the aggravated-felony finding; an alien must exhaust § 1326(d)(1).
Conflict Summary
Several circuits hold that because § 1228(b) fast-track proceedings give an alien no avenue to contest the legal determination that a prior conviction is an aggravated felony, administrative remedies are 'unavailable' and the exhaustion prong of § 1326(d) is deemed satisfied. The Eleventh Circuit takes the opposite view, concluding that an alien can raise legal objections and therefore must exhaust. Seventh Circuit precedent is internally inconsistent, recognizing both views in different panels.